Charles Arlinghaus: The governor's inappropriate nominee

GOV. MAGGIE Hassan made a mistake by nominating someone engaged in an ongoing lawsuit against the state to regulate the area over which he’s still suing. The mistake is not one of policy, but one of propriety. The nomination can and should be withdrawn before tomorrow’s vote of the Executive Council.

Bill Duncan and I don’t agree at all on education policy, but that does not and should not have any bearing on the propriety of his nomination to the State Board of Education. What’s inappropriate is that he’s currently engaged in suing the state in this very area — the area he’s being tapped to oversee.

After the state’s school choice scholarship law passed in 2012, opponents filed a lawsuit to overturn it. That lawsuit, known as Duncan v. New Hampshire, is ongoing. A recent headline missed this when it said that “State Board of Education nominee had sued state over education funding.” The tense of that headline is wrong, and that distinction makes all the difference.

As the article makes clear, the lawsuit is ongoing. So the governor has nominated someone to the State Board of Education who is currently suing the state over education policy. He didn’t once upon a time sue the state. He hasn’t expressed concerns. He is currently engaged in a lawsuit — a lawsuit named after him — and the governor nominated him to oversee the area of state government that is entangled in his ONGOING lawsuit. Does the governor not see that this is a trifle odd?

As a matter of policy, we should not appoint plaintiffs of ongoing lawsuits to oversee the area of state policy over which they are suing. Ever. The governor could find plenty of liberals she could appoint to the board who don’t happen to be currently suing the State of New Hampshire over education policy.

This problem can occur when you seek out activists for appointment to oversight positions. Previous governors have rarely sought activists for these oversight positions. Craig Benson, for example, selected a respected local businessman Fred Bramante to chair the board. John Lynch also avoided activists and those who had been lobbying the Legislature for his appointments. His selected chairman was another respected local businessman, Tom Raffio, who remains in that position.

Something Benson and Lynch — and their predecessors — agreed on: not one of them ever appointed someone suing the state over education to oversee education policy. Nor did they appoint anyone else enmeshed in an ongoing lawsuit to oversee the subject of that lawsuit. Tax lawyers suing the state weren’t appointed to run Revenue Administration. Prison activists engaged in an ongoing lawsuit didn’t take charge of Corrections.

No sensible person, looking at this outside of a political lens, could argue the merits of appointing ongoing plaintiffs.

Adding another wrinkle to this is one unique role of the State Board of Education. The board charters, authorizes and regulates almost every charter school in the state. Bill Duncan, aside from suing over an issue of educational choice, is regarded by the charter school community as leader of their opposition. He’s on the other side in every debate. He has said “charter schools are a political statement, not an educational improvement.” He’s referred to charter schools as “dismantling public education” and called them a “distraction.” Despite that, he says he supports charter schools. You can see, however, why the charter schools of the state might be skeptical.

These views of his — and by extension the governor who nominated him — are a policy choice. They are free to make that policy choice (with which I obviously disagree). But should someone with such demonstrated hostility to charter schools be placed on their oversight and authorizing board?

That’s a policy choice the governor is free to make. His hostility to such schools makes his selection slightly disingenuous on the part of a governor who claims to be supportive of charters. But it is not disqualifying in itself. I expect that any fully qualified nominee she picks will have equally doctrinaire liberal views on the matter.

I don’t want to lose sight of what is disqualifying. I said this before, but is worth repeating: As a matter of policy, we should not appoint plaintiffs of ongoing lawsuits to oversee state policy over which they are suing. Ever.

Charles M. Arlinghaus is president of the Josiah Bartlett Center for Public Policy, a free-market think tank in Concord. His email address is arlinghaus@jbartlett.org.